Envisage the Gravity of Hacking in Breach of Privacy in India under Information Technology Act, 2000

Titash Mukherjee, Abhishek Verma | February 2023

Introduction

“When a man is denied the right to live the life he believes in, he has no choice but to become an outlaw”. -Nelson Mandela

There is no universal accepted definition of crime it may vary but the main essence of crime is same, so a crime is generally an offence committed either against an individual, community or state. Cybercrime is a kind of criminal task whereby a personal computer or maybe the community would be the resource, goal or maybe site or instrument of a criminal offence. Cyberspace crimes are dedicated against people, home, modern society as well as the federal government in particular. A virtual space who has been given life by the bits which is simply 0 and 1(binary digits). Cyberspace is a manmade virtual space where ideas are transmitted through data over computers. The electrical impulse in the computers are guided by the bits because of which computers are able to identify what to do.

India is a diversified nation according to the Constitution of India, 1950 under Article 21 no person shall be deprived of his personal life and liberty and gives protection to Right to Privacy. Whereas according to the Preamble it promises that ‘WE THE PEOPLE OF INDIA’ will secure the LIBERTY of thought, expression, belief, faith and worship. Hacking is one of the most lethal way to bring down any nation, individual or to invade privacy hence, in consideration to the damage a single corrupt code can cause there are a few provisions under Information Technology Act, 2000 (hereinafter referred as IT Act) to consider.

The Preamble of the IT Act postulate as it is designed at giving authorized recognition for transactions completed using electric details interchange along with other way of electric correspondence, generally known as “electronic commerce”, and they entail the usage of options to paperbased techniques of storage space and interaction of info as well as is designed at facilitating electronic submitting electronic documents with the Government agencies. The act of hacking is specifically addressed under Chapter XI Section 66 of the IT Act. As per Section 66 any individual who commits one of the unlawful or fraudulent acts listed in Section 43. The crime is punishable in accordance with Section 66. According to section 66F of the IT Act, anyone who commits or conspires to conduct cyber terrorism shall be punished with imprisonment which may extend to imprisonment for life.

In 2017 a historic judgment was passed by the Hon’ble Supreme Court that changed the view of privacy in Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors. This particular situation is definitely the foundation of the ‘Right to Privacy’ jurisprudence in India. The 9 Judge Bench within this particular situation unanimously reaffirmed the right to secrecy/ privacy like an essential appropriate underneath the Constitution of India. The Court kept that the best to secrecy was essential to freedoms assured throughout basic rights, as well as was an intrinsic element of dignity, liberty and autonomy

Supreme Court also held that if the State intrudes into the privacy it may be restricted within the ambit of three-fold as described.

Legality, and that postulates the presence of law;
Demand, identified in conditions of a genuine status aim; and
Proportionality that guarantees a logical nexus in between the signifies and also the items followed to attain them.

The Bench unanimously kept that “the straight to secrecy is shielded being an intrinsic portion of the directly to private liberty and living below Article 21.

Types Of Hackers

Hacktivist: These kinds of online hackers plan to hack government sites. They pose themselves as activists, therefore recognized as being a hacktivist. Hacktivist could be a nameless person, online hackers whose intention is gaining use of government sites as well as networks. The information acquired from government documents accessed is utilized for private political or maybe interpersonal gain.
State Hired Hackers: Government appoints online hackers to get information regarding some other places. These kinds of online hackers are classified as State sponsored online hackers. They normally use their expertise to get information that is confidential to become nicely geared up for just about any forthcoming threat to the their nation. The vulnerable information aids to remain along with each scenario but additionally to stay away from a forthcoming threat. These kind of hackers answer to the their respective government who hired them in the first place.
Script Kiddies: It is a recognized truth that 50% knowledge is usually harmful. The Script Kiddies are amateurs sorts of online hackers within the area of hacking. They try and hack the device with scripts coming from some other fellow online hackers. They try and hack the devices, networks, or perhaps sites. Script Kiddies are juveniles that do not have a total understanding of the hacking operation.
Blue Hat Hackers: Blue Hat Hackers are kinds of online hackers who are much like Script Kiddies. The intention to discover/learn is absent. They normally use hacking as a tool to get recognition among their fellow hackers.
Green Hat Hackers: These kind of online hackers who are studying the ropes of hacking. They’re somewhat totally different from the Script Kiddies due to the purpose of theirs. The intention is striving as well as figure out how to be full-fledged online hackers. They’re searching for chances to understand and learn by the knowledgeable hackers.
Gray Hat Hackers: They’re not accredited, online hackers. These kinds of online hackers possibly use good or bad motive. The hacking could be for their personal gain. The intention behind hacking decides the type of hacker. If the intention is for personal gain, the hacker is considered a gray hat hacker.
White Hat Hackers: These hackers are kinds of online hackers who are experts with knowledge in cybersecurity. They’re authorized or even accredited to hack the devices. They hack the device from the loopholes to check the cybersecurity This particular practice is done to understand the amount or level of cybersecurity. In that way, they recognize the vulnerable areas as well as heal them to stay away from strikes coming from outside corrupted sources. These hackers works within the purview of government and are also referred to as honest online hackers.
Whistleblowers: These kinds of online hackers are associated with the people employed in an organization who are able to present information that is confidential. The intention is to take any personal grudge with the person or the organization.

Provisions Under The It Act

Section 65- It States that Concealing, destroying, changing some computer supply code whenever the exact same is necessary to be kept or may be taken care of by law is an offence punishable with up to 3yrs imprisonment or with fine which may extend to 2 lakh rupees or both. Section

66- Any individual who commits one of the unlawful or fraudulent acts listed in Section 43 is punishable by imprisonment for up to three years or with fine up to five lakh rupees, or both. Section

66A- Punishment for sending offensive messages through communication service, etc. states that the offensive messages are offensive, leading to annoyance and so on a delivering electric correspondence or maybe mailing a contact to mislead and/or deceive the receiver regarding the foundation of this kind of emails (commonly often known as IP as well as e-mail spoofing). Punishment for these actions is imprisonment up to 3 years and with fine.

Note* This section is struck down by the Supreme Court in the case of Shreya Singhal v. Union of India (2015) 5 SCC 1 but the shameful act is, it is still used even though it was struck down in 2015 not a section anymore.

Section 66E- This section deals with the privacy violation that if any person publishes any private area of other person into the cyberspace without his/her permission will be liable for punishment for a term which may extend to 3yrs or fine of 2lakh or both.

Section 66F- According to section 66F of the IT Act, anyone who commits or conspires to conduct cyber terrorism shall be punished with imprisonment which may extend to imprisonment for life.

Conclusion

The aim is to be a nation with less cyberattacks, privacy breach etc. but the current situation is that India is among those nations where there is high degree of cyberattacks every year. “In order for justice to be blind, she must open her eyes to ugly truths”. Therefore, in order to lower the risk India must take some actions against the hackers.

In pre-independence era the source of privacy breach was limited to phone tapping but now even a charging cable can be tweak in such ways to siphon the information from a computer/ phone/tablet anything the cable will be attached to. It is of utmost important to safeguard the privacy of every individual the right to be left alone must be respected. In order for India to cope with the unforeseeable events, India must be Alan Turing for all the cyber enigma.

About Author

Titash Mukherjee

Titash Mukherjee has eight years experience and is a Principal Associate with S. Jalan & Co. She has completed her post graduation in Business Law from the University of Calcutta and focuses primarily on insolvency, dispute resolution, real estate as well as general corporate advisory.

Abhishek Verma

Abhishek Gaurav Verma, working as an Associate with S. Jalan & Co., is a BBA LLB graduate from Law College Dehradun, Uttaranchal University in the year 2021. His primary area of practice involves Commercial Civil Suit, Civil Suits, Arbitration, IBC etc.,. He has a considerable experience of appearing before National Company Law Tribunal, NCDRC and various other courts.